Ask Korea Law

Published by Chung & Partners Since 2008


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Chung & Partners Successfully Convinced Appellate Court to Reverse Lower Court’s Denial of U.S. Parents Adoption Petition

1Recently our office represented U.S. parents whose adoption application had been denied by the Korean court.  The adoption was processed as an institutional adoption which is regulated by the Act on Special Cases Concerning the Promotion and Procedure of Adoption.  Institutional adoption, often called an orphanage adoption, is under more strict regulation and qualifications than a private adoption.  In this case, the 1st instance court of Seoul Family Court denied the U.S. parents adoption petition due to the concern caused by the adoptive parent’s past medical history of Obsessive-Compulsive Disorder (OCD).

Our office, leaded by lawyer Mr. Wonil Chung, took this case at the appellate court level.  We reviewed the the entire record and documents from the beginning and found that the lower court’s finding and the conclusion were not based on the true facts, but on vague concern.  We even found a critical error in the translation of ODC evaluation report provided by the Korean adoption agency.

Mr. Chung argued in front of the appellate judges that U.S. medical professionals had stated that the petitioner’s OCD did not harm his suitability as an adoptive parent.   He also pointed out that the U.S. government had Continue reading


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How to Cope with the Korean Police’s Summon for Criminal Investigation

Can Korean Police Issue a Summon Even When the Suspect Resides Abroad?

For a starter, there may be a question about whether the Korean police can summon a foreigner who resides abroad.  The answer is yes. The Korean criminal law applies to those who have committed crimes within Korea and then gone abroad, as well as those who have committed crimes against Koreans while staying outside of Korea.  Thus, a foreign resident could be sued and accused by the Korean police, and in such case, the Korean police moves to demand the foreign suspect to attend the investigation in Korea.  Recently, our office sees many cases where a foreign resident employee of a foreign company is called in by the Korean police in relation with its Korean subsidiary’s business.

Do I have to comply with the summon?

Since a foreign country is not within the domain of Korea’s criminal jurisdiction, it is not mandatory for the foreign resident suspect to comply with the summon.  However, if the foreign resident suspect refuses to comply with, the Korean law enforcement authority can get an arrest warranty, which could put the suspect at risk of being arrested upon entering Korea. Continue reading


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How Fast Can a Divorce Be Finalized in Korea?

Divorce could be one of the hardest decisions that people make during their entire life.  If people decide to divorce, one question they might ask their Korean divorce lawyer is how long it will take to get the divorce decree from the Korean Family Court.  The short answer to this question is that it depends, the magic phrase that the lawyers would love to use in almost every dialogue.  The thing is, however, that it really depends on various factors, especially what types of divorce they are going through.  It could be a contested divorce or an uncontested divorce, which requires totally different approach and care.

If it is an uncontested divorce which means the parties have been able to agree about all the issues involved in a divorce such as custody, child support, visitation, property division and consolation money, the divorce decree can be obtained within 1 to 2 months.  That is pretty fast compared to other countries.  The parties don’t need to appear at the court so long as a Korean divorce attorney takes care of the case.  That is how our office in Seoul has been handling the uncontested divorce cases.

If the divorce is contested, it requires more time for the Korean Family Court to render a divorce decree.  It should go through several hearings and extensive arguments between the parties. Continue reading


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Patent License Agreement in Korea – What Happens to Royalty Payment When the Patent Later Becomes Invalidated

Korean Law OfficeThere is no doubt that intellectual property is a valuable asset and parties all around the world are dealing with an arrange of utilizing 3rd party’s intellectual properties.  Sometimes it could be a license or sometimes a transfer.  In any case it is very important to verify the validity of the underlying intellectual property before entering into a contract.  As for a patent, first it looks relatively simple compared to other intellectual property such as a copyright to clear this issue because a patent is being registered with the Korean Intellectual Property Office.  The registration, however, does not guaranty the validity of the patent at issue.  It can be challenged later by 3rd party and could be nullified by the court’s decision.  Then what happens if the patent becomes void after the license agreement is entered into?  The Korean Patent Act provides that if a court’s decision invalidating a patent becomes final and conclusive, the patent shall be deemed never to have existed.  Then what happens to the royalty previously paid by the licensee?  Does the licensee can refuse to pay the royalty after the patent gets invalidated and even ask for the refund of the royalties previously paid pursuant to the patent license agreement?  The Supreme Court of Korea said No.
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Choice of Laws Is Critical When It Comes to an International Inheritance

Korean LawyerRecently our office has represented US clients whose German father had passed away in South Korea without any will.  At the time of passing, the deceased was domiciled in Korea and remarried to a Korean wife.  The Korean wife contacted the US family out of blue to discuss how to distribute the estate in Korea.  The US clients were the children from the deceased’s previous marriage in the US.  They contacted our office for the legal advice and representation.

One of the issues was which country’s inheritance law shall be applicable, i.e. the Korean inheritance law or the German inheritance law.  This was because the deceased had a foreign nationality, while his estate and residence at the time of passing were all in Korea.  Practically, when the Korean law is applied, the US children shall be entitled to the larger shares than those granted under the German law.

In Korea, Article 49 of the Korean Act on Private International Law(“APIL”) is the starting point to determine which country’s law shall be the governing law in case of an international inheritance case.  It provides that Continue reading


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(Q&A) International Divorce in Korea: Jurisdiction, Governing Law, Asset Distribution and Immigration Issues

Korean LawyerQ) I am a US citizen with a Korean spouse.  We married in Seoul and then went to America where we have been since.  I have been a NJ resident.  Korean spouse abandoned me in 2018 and went to live with her friend in Maryland.  Korean spouse states that she wants a divorce and insists she is entitled to all of my monies in Korea.  My options are to file for divorce in New Jersey or Maryland.  I also want to see what Korean court can do.  Ideally I would want to get the F-6-1 visa in Korea as well as ensure my stake in the Korean property.

A) Here you have two main issues correlated with an international divorce: an international jurisdiction and a governing law.

If your wife has any registered address in Korea, the jurisdiction would not become an issue.  However, as I understand she is residing in Maryland, it would be become an issue whether a Korean court could exercise a jurisdiction over two persons who are now living in Korea.

In this regard, the Private International Act(“PIA”) provides that the Korean court shall have the international jurisdiction when a party or a case in dispute is substantially related to South Korea.  This means the residence Continue reading


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Rights of a Criminal Suspect during the Korean Investigation Procedures – Self-Advocacy Note Presented by the Seoul Bar Association

Seoul Bar AssociationThe Seoul Bar Association has recently issued a Self-Advocacy Note for the use of any criminal suspect under the Korean investigative procedures.  Before this being issued, the National Human Rights Commissions had recommended the police and the prosecutors to guarantee the criminal suspects’ right to take notes.  Although this may sound weird to some from other countries, the Korean police and prosecutors have been prohibiting the suspects from taking their own notes during the interrogation.

 

This Self-Advocy note is prepared in order to help any suspect inducing a foreign suspect to fully understand and examine his/her statutory rights to self-advocacy before and during the investigative procedures. You can download it at the homepage of the Seoul Bar association or by clicking here.

This also contains a good explanation of the overall investigative procedures under Korean law.  Below is quoted from the English version of Self-Advocacy Note which explains about the Criminal Investigative Procedures in Korea.  It should be greatly appreciated that Continue reading